In March 2004 I was arguing that “war on terror” was a bad metaphor. It clouds thinking, confounds the just war doctrine and fails to deal with the problem of asymmetric combat. The problem is that no one seems to have a better metaphor. This is not just a matter of words. Von Clausewitz insisted that no leader should enter a war without knowing exactly what he intended to achieve by it. We can 't know exactly what we intend to achieve if we can't even name the conflict correctly. (Just War advocates would add that his intention be just. Karl was describing what the leader needed to do, not prescribing what was right.)
Even though much of the conflict depends on first-rate law enforcement, law enforcement against international crime rings isn’t much better as a metaphor
In the TCS Daily, Arnold Kling Arnold Kling puts forth some ideas in the course of reviewing Richard Posner’s Not a Suicide Pact: the Constitution in Time of National Emergency. His approach leads to clearer thinking and a better balance of civil rights and national security.
For Posner, a central problem is that terrorism is, in his words sui generis (now there's something that's not in the economic vocabulary), meaning that it does not fall neatly under the heading of either crime or war. The way I would put this is that terrorists are neither suspects nor soldiers. Until someone commits an act of terrorism, there is no crime, and hence no suspect. And because they act to conceal their status as combatants (as opposed to a combatant who merely tries to conceal himself by camouflage or hiding), terrorists are not soldiers.
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I believe, however, that there is a proper legal category for terrorists. They are best thought of as spies, or enemy secret agents. The tactics and procedures that are appropriate for trying to apprehend spies in a time of war are appropriate for dealing with terrorists. Those tactics include counter-espionage and surveillance. Enemy spies do not fall under the Geneva Convention treatment for prisoners of war.
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If we are going to describe people as enemy agents or traitors in a time of war, then we need a procedure for identifying the enemy. We do not want the decision of who is a spy or who is a traitor left entirely to the discretion of the President and his appointees.One way to identify the enemy would be with a formal declaration of war. Unfortunately, because the enemy is not a sovereign state, a formal declaration of war is inappropriate.
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An alternative approach could be to designate specific terrorist groups as enemies. Clearly, Al Qaeda belongs in that category. However, other groups, such as the Tamil separatists or Basque terrorists, might be appropriately designated as terrorists, but not as enemies of the United States.
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Because the designation of a terrorist group as an enemy is somewhat akin to a declaration of war, such a designation should come from Congress.
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The advantages of having a named list of enemy terrorist groups would be the following:
- It constrains the focus of anti-terrorism efforts, especially surveillance. The goal of domestic surveillance would be limited to finding agents of designated enemies. …
- It draws a line that can be used to distinguish dissidents from traitors. …
- It draws a line for potential enemies...
Seems to be a better approach than what we are doing now. It might even force a better debate in Congress. It will require some effort and special language so that groups cannot excape law enforcement by simply changing names.
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